1. This Bench of the Appeals Chamber of the International Criminal Tribunal
for the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia since
1991 (respectively, “Bench” and “International Tribunal”) is seized of the
“Application for Leave to Appeal Against the Decision on Provisional Release
of Fatmir Limaj, Rendered by Trial Chamber I on 12 September 2003”, filed
by counsel for Fatmir Limaj (respectively, “Defence” and “Limaj”) on 22 September
2003 (“Application for Leave to Appeal”), pursuant to Rule 65(D) of the Rules
of Procedure and Evidence of the International Tribunal (“Rules”).

2. The Application for Leave to Appeal challenges a decision issued by Trial
Chamber I on 12 September 2003, rejecting Limaj’s request for provisional release
(“Impugned Decision”).1 In the Impugned Decision,
the Trial Chamber denied provisional release, inter alia, on the following
grounds: (i) that “[it] cannot be satisfied that the Accused would have surrendered
voluntarily to the Tribunal if he would not have been arrested”; (ii) that “the
Accused alleged to have command responsaibility and is charged with participating
in serious crimes… [and] that, if convicted, the Accused is charged with participating
in serious crimes” and “that therefore if convicted, the Accused is likely to
face long prison terms and he therefore has a stong incentive to flee”; (iii)
that “according to the letter of Mr. Coffey [Director of the Department of Justice
of UNMIK], UNMIK is not able to provide any guarantees that the Accused, if
provisionally released would be available for trial”; and (iv) that “the Chamber
is not satisfied that if released, the Accused would appear before the Tribunal”.

3. With respect to the procedural background, the Bench granted the Office
of the Prosecutor (“Prosecution”) leave to file a joint response, and an extension
of time, on 30 September 2003.2 The Prosecution
filed its response on 26 September 2003 (“Response”).3
Following an oral grant of an extension of time, the Defence replied on 13
October 2003 (“Reply”).4

4. The question before the Bench is whether “good cause” pursuant to Rule
65(D) Sentence 1 for granting leave to pursue the appeal to the full Appeals
Chamber has been shown.

II. Applicable Law

5. Rule 65(B) of the Rules sets out the basis upon which a Trial Chamber
may order the provisional release of an accused. It states that provisional
release “may be ordered by a Trial Chamber only after giving the host country
and the State to which the accused seeks to be released the opportunity to
be heard and only if it is satisfied that the accused will appear for trial
and, if released, will not pose a danger to any victim, witness or other person”
(emphasis added).

6. Rule 65(D) of the Rules provides, inter alia, that leave to appeal
a Trial Chamber’s decision on provisional release may be “granted by a bench
of three judges of the Appeals Chamber, upon good cause being shown”. According
to the settled jurisprudence of the Appeals Chamber, there is “good cause”
within the meaning of Rule 65(D) for granting leave to appeal when it appears
that the Trial Chamber “may have erred” in rendering the impugned decision.5

7. A Trial Chamber “may have erred” when it did not apply the law correctly
or failed to take into account and assess all the decisive facts of a case.

8. Article 21(3) of the Statute of the Tribunal, adopted by Security Council
Resolution 827 of 25 May 1993 (“Statute”), mandates that “the accused shall
be presumed innocent until proved guilty”. This provision both reflects and
refers to international standards as enshrined, inter alia, in Article
14(2) of the International Covenant on Civil and Political Rights (“ICCPR”)
of 19 December 1966 and Article 6 (2) of the Convention for the Protection
of Human Rights and Fundamental Freedoms of 4 November 1950 (“ECHR”).

9. Furthermore, Article 9(3) of the ICCPR emphasizes inter alia that:
“it shall not be the general rule that persons awaiting trial shall be detained
in custody, but release may be subject to guarantees to appear for trial”.
Article 5 (3) of the ECHR provides inter alia that: “everyone arrested
or detained…shall be entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial”.

10. These human rights instruments form part of public international law.

11. The ICTY is entrusted with bringing justice to the former Yugoslavia.
First and foremost, this means justice for the victims, their relatives and
other innocent people. Justice, however, also means respect for the alleged
perpetrators’ fundamental rights. Therefore, no distinction can be drawn between
persons facing criminal procedures in their home country or on an international
level.

12. Rules 65 (B) and (D) of the Rules must therefore be read in the light
of the ICCPR and ECHR and the relevant jurisprudence.

13. Moreover, when interpreting Rule 65(B) and (D) of the Rules, the general
principle of proportionality must be taken into account. A measure in public
international law is proportional only when it is (1) suitable, (2) necessary
and when (3) its degree and scope remain in a reasonable relationship to the
envisaged target. Procedural measures should never be capricious or excessive.
If it is sufficient to use a more lenient measure than mandatory detention,
it must be applied.6

III. Discussion

14. At the outset, the Bench notes that, in breach of Rule 65(D) of the
Rules, the Application for Leave to Appeal was filed one day late (Monday
22nd of September instead of Friday 19th September 2003). In fairness to the
Accused, who should not be held responsible for his counsel’s negligence,
the Bench has nevertheless decided to consider it. In the Application for
Leave to Appeal, the Defence relies on five grounds of appeal. They will be
dealt with in the following sections, grouped together where appropriate.

(a) The Trial Chamber erred in not granting an oral hearing, in not giving
reasons for such a failure, and in failing to inform the parties of its decision
(Grounds 1-3)

15. According to the Defence, the Trial Chamber erred in refusing its request
for an oral hearing because there are no cases in the practice of the International
Tribunal in which an application for provisional release has been refused
“on paper ” where such a hearing had been requested. This rejection, it is
claimed, denied the Defence the opportunity to call important witnesses. The
Defence also argues that the Trial Chamber erred in not giving any explanation
for its denial, as it is under an obligation to provide reasons for its decisions.
Lastly, the Defence contends that the Trial Chamber erred in failing to inform
the Defence of its rejection of the request for an oral hearing because it
deprived the Defence of the possibility to make detailed submissions in support
of its request for an oral hearing, and to make fully informed decisions regarding
how best to present certain evidence before the Trial Chamber.

16. The Prosecution submits that the decision whether or not to receive
oral submissions in addition to written submissions is one reserved for the
discretion of the Trial Chamber and that, when requesting an oral hearing,
the Defence did not express its intention to call additional witnesses. The
Prosecution contends that the duty to provide a reasoned opinion applies only
when the Chamber is dealing with substantive aspects of the Application, and
does not limit the Trial Chamber’s discretion to decide whether or not to
call an oral hearing. The Prosecution argues that the alleged failure by the
Trial Chamber to notify the Defence of its decision did not prejudice the
preparation of the case as the Defence had ample opportunity to present its
case in its written submissions, which indeed amounted to more than 100 pages.
Thus, if the Defence did not put before the Trial Chamber all the evidence
it could have submitted, this was a miscalculation on the part of the Defence
and not an error of the Trial Chamber.

17. The Bench largely concurs with the Prosecution’s submissions. Another
bench of the Appeals Chamber, rejecting an application for leave to appeal
in Odjanic , reasoned as follows:

“CONSIDERING that the right of an accused to be heard is
not similar to what the accused regards as his right to be heard personally;
CONSIDERING that the “right” of an accused, who is represented,
to be heard personally is not unfettered and is subject to the discretion
of the Chamber before which the accused is appearing; CONSIDERING that Ojdanic has not put forth any cogent reason
why he should have been heard personally in the present case, nor has he shown
that the Trial Chamber abused its discretion when refusing to hear him personally
[the Chamber refuses leave to appeal].7

It follows that the right to be heard personally is not absolute. The granting
of an oral hearing is a matter for the discretion of a Chamber, and it may
legitimately be regarded as unnecessary when, as in the present case, the
information before the Trial Chamber is sufficient to enable the Chamber to
reach an informed decision. The Defence has failed to demonstrate the added
value of an oral hearing, namely the reason why if granted, such a hearing
could have led the Trial Chamber to another conclusion. Contrary to what was
argued by the Defence, the tendering of “detailed submissions” in support
of an oral hearing (if available) has to be done when the request for a hearing
is made. Finally, the Trial Chamber is not obliged to explain prior to its
final decision why a hearing is unnecessary or to notify the parties of this.

18. For the foregoing reasons, the Bench finds that the Defence’s arguments
under Grounds 1 to 3 do not demonstrate that the Trial Chamber may have erred
in the exercise of its discretion under Rule 65(B) of the Rules – see above
paragraphs 5-13 - and, therefore, these grounds are dismissed.

(b) The Trial Chamber erred in failing to notify the parties that Mr.
Steiner had not responded to the Pre-Trial Judge’s letter of 31 July 2003
seeking his appearance (Ground 4)

19. The Defence submits that the Trial Chamber erred in deciding the application
for provisional release without informing it that Mr. Steiner, the Director
of the United Nations Interim Administration Mission in Kosovo (“UNMIK”),
had not responded to a letter of 31 July 2003, in which the Pre-Trial Judge
had requested that Mr. Steiner submit his comments on Limaj’s provisional
release (“Letter”). Had it been informed, the Defence argues, it would at
least have sought a subpoena so as to obtain the “very important evidence”
that Mr. Steiner could have offered with regard to Limaj’s application for
provisional release.

20. The Prosecution submits that the Letter only asked Mr. Steiner to respond
“if he so wished”, and that by no means was the Trial Chamber obliged to notify
the Defence of Mr. Steiner’s failure to respond. It argues that the Defence
was at least on notice that Mr. Steiner had not responded as otherwise the
response to the Letter would have been filed, and made available to the Defence.
The Trial Chamber waited a full two weeks beyond the deadline of 25 August
2003 set out in the Letter before issuing the Impugned Decision, giving Mr.
Steiner extra time to respond, and allowing the Defence ample opportunity
to inquire as to whether any response had been received or was forthcoming
by, for instance, contacting Chambers or the Registry.

21. First, the Bench wishes to stress that the Trial Chamber was under no
obligation to notify the Defence that Mr. Steiner had not responded to the Letter.
It was for the Defence, if it so wished, at the expiry of the deadline set out
in the Letter, to contact the Registry, which is the channel of communication
for the International Tribunal, in order to seek any available information.
Secondly, the Bench notes that the Letter requested Mr. Steiner to respond by
the 25th of August 2003; having received no answer from Mr. Steiner before the
expiry of the deadline, it would have been evident, in the Bench’s view, that
Mr. Steiner, who had been appropriately asked by the Trial Chamber to respond
only “if he so wished”, had chosen not to do so. This is all the more so because
Mr. Coffey had already clearly stated UNMIK’s position with regard to Limaj’s
provisional release, and thus it was neither realistic nor warranted to expect
an additional response from UNMIK.

22. For the foregoing reasons, the Bench finds that Ground 4 does not demonstrate
that the Trial Chamber may have erred in the exercise of its discretion under
Rule 65(B) of the Rules – see above paragraphs 5-13 - and, therefore, it is
dismissed .

(c) The Trial Chamber failed to give appropriate consideration to the issue
of “guarantees” (Ground 5)8

23. According to the Defence, the Trial Chamber placed excessive weight on
the absence of guarantees from UNMIK and insufficient weight on the undertakings
from the provisional authorities of Kosovo, including the statement by the Prime
Minister of Kosovo and by Limaj himself.

24. The Prosecution responds that the Trial Chamber was correct in placing
more weight on the representations from UNMIK as UNMIK, not the provisional
government, remains responsible for public safety and order in Kosovo and for
monitoring the borders of the province. Further, Mr. Coffey, the head of the
UNMIK justice system, had stated that given the limited resources available
to UNMIK, it would be relatively easy for Limaj to flee and that, the provisional
authorities of Kosovo have no means to enforce their own undertakings, as the
Prime Minister of Kosovo himself has publicly acknowledged.

25. According to the settled practice of the International Tribunal, it
is the State into the territory of which the accused will be released, as
the guarantor of public safety and order in that territory, that must provide
the International Tribunal with guarantees that the accused will not flee
and that if he does so, he will be arrested. As the Trial Chamber correctly
noted, in the province of Kosovo, according to Security Council Resolution
1244 of 10 June 1999, UNMIK, and not the provisional institutions of Kosovo,
is the authority which, in coordination with KFOR (the NATO Forces in Kosovo),
is entrusted with ensuring public safety, and conducting bordering monitoring,
and is given the necessary means to enforce such duties. Thus, there is no
reason why the Trial Chamber should have taken into account guarantees given
by other authorities.

26. For the foregoing reasons, the Bench finds that Ground 5 does not demonstrate
that the Trial Chamber may have erred in the exercise of its discretion under
Rule 65(B) – see above paragraphs 5-13 - and, therefore, it is dismissed.

The Trial Chamber failed to give “the most anxious scrutiny” to the Defence’s
arguments (Ground 6)

27. Pursuant to this ground of appeal, the Defence submits that the Trial
Chamber made three different kinds of error. They will be dealt with in turn.

28. First of all, the Defence submits that the Trial Chamber erred in relying
on the seriousness of the charges against Limaj when refusing to grant provisional
release because, in the ECHR jurisprudence, the severity of the sentence that
may be imposed if the accused is convicted is not a ground for refusing an
accused provisional release.

29. The Prosecution responds that the jurisprudence of the International
Tribunal is fully consistent with international law and hat the Trial Chamber
considered the seriousness of the charges and the possibility of a lengthy
sentence together with several other factors.

30. The Bench considers that, while under Rule 65(B) of the Rules the seriousness
of the charges against an accused cannot be the sole factor that determines
the outcome of an application for provisional release, it is certainly one
that a Trial Chamber is entitled to take into account when assessing whether
an accused, if released, would appear for trial.9
It is evident that the more severe the sentence which an accused faces, the
greater is the incentive to flee. As the Trial Chamber relied on the seriousness
of the charges against Limaj in addition to several other factors, it did
not err in taking this factor into account. Furthermore, this approach is
not inconsistent with the ECHR jurisprudence. Rather, in the Bench’s view,
such an approach accords with that of the ECourtHR.10

31.Next, the Defence claims that Mr. Coffey was not asked for information
in a neutral manner but was effectively “primed” by the Prosecution, and that
he made his statement without the benefit of any representation from the Defence.

32. The Prosecution rebuts this, arguing that Mr. Coffey’s letter was not
submitted to the Trial Chamber in response to a Prosecution request but in
response to the accused’s request, and that it did not “prime” Mr. Coffey;
to the contrary, “care was taken not to infringe the neutrality of UNMIK”.
It rejects as untrue the assertion that Mr. Coffey made his statement “without
the benefit of any representation from the Defence” arguing that the Defence
in fact met with Mr. Coffey to discuss Limaj’s provisional release before
Mr. Coffey replied to the letter.

33. The Bench notes that, contrary to what was argued by the Defence, the
Defence appears to have met with Mr. Coffey before he sent his letter to the
Trial Chamber and thus, Mr. Coffey did in fact have the opportunity to hear
both the parties. The Bench does not accept the Defence’s implication that
the Director of Justice of UNMIK would give a false assessment of the security
situation in Kosovo after being “primed” by the Prosecution. There is no basis
for asserting that Mr. Coffey’s assessment would not be reliable, and thus
the Trial Chamber did not err in relying upon it.

34. Finally, the Defence contends that the Trial Chamber failed to explain
why it found that Limaj did not voluntary surrender, notwithstanding the declarations
to the contrary by individuals involved in Limaj’s surrender, such as the
Prime Minister of Kosovo, Mr. Steiner, and General Mini, the head of the KFOR,
under whose command Limaj was arrested.

35. The Prosecution responds that the Impugned Decision makes explicit reference
to the Accused’s arrest by the Slovenian authorities, indicating his intention
to return to the protection of Kosovo rather than surrender to the International
Tribunal.

36. In exercising its discretion under Rule 65(B) of the Rules, the Trial
Chamber must take into account all the decisive [material] facts of a case.
The Trial Chamber was correct to consider, in addition to the submissions of
the Defence in its original motion, Limaj’s representations to the press and
to the Kranj District Court in Slovenia, the reliability of which is not challenged
by the Defence. Weighing all these facts together, it reached the reasonable
conclusion that Limaj’s surrender was not voluntary.

37. For the foregoing reasons, the Bench finds that Ground 6 does not demonstrate
that the Trial Chamber may have erred in the exercise of its discretion under
Rule 65(B) – see above paragraphs 5-13 - and, therefore, it is dismissed.

(d) The Trial Chamber erred in not placing the burden of proof on the
Prosecution to

demonstrate that the accused is not entitled to provisional release (Ground
7)11

38. According to the Defence, international humanitarian law and principles
enshrined in the ICCPR and the ECHR impose upon the Prosecution the burden
of proof in justifying detention pending trial before this International Tribunal.
The Defence adds that the detention should be justified by clear and convincing
evidence. In support of its view, the Defence quotes several cases from the
Human Rights Committee, the European Court of Human Rights (“ECourtHR”), the
United Kingdom. and the United States. It relies as well on Articles 60(2)
and 58(1) of the Statute of the International Criminal Court (“ICC”).

39. The Prosecution submits that the Defence’s interpretation of international
law is wrong and that the Impugned Decision is fully consistent with the settled
jurisprudence of this International Tribunal, in which it is well established
that the burden of proof rests on the accused. It recalls that, unlike national
jurisdictions, the International Tribunal lacks a police force and has to
rely on States to monitor and enforce conditions of release. It submits that
the Trial Chamber’s approach is fully consistent with its obligation to conduct
a fair evaluation of the circumstances and interests at stake. With respect
to the ICC Statute, the Prosecution observes that it is not binding on the
International tribunal and it does not support the imposition of a burden
of proof on the Prosecution to justify pre-trial detention.

40. It is the Bench’s view, contrary to the argument put by the Defence,
that the Trial Chamber did not err in not imposing the burden on the Prosecution
to demonstrate that provisional release was inappropriate. First, Rule 65(B)
does not place the burden of proof on the Prosecution. Pursuant to that Rule,
the Trial Chamber was required to determine whether it was "satisfied" that
Limaj, if released, would appear for trial. After taking into account the
information submitted to it by the parties and weighing all the relevant factors,
it held that it was not satisfied. There is thus no basis for holding that,
by not placing the burden of proof on the Prosecution, the Trial Chamber erred
in its application of Rule 65(B).

41. For the foregoing reasons, the Bench finds that Ground 7 does not demonstrate
that the Trial Chamber may have erred in the exercise of its discretion under
Rule 65(B) – see above paragraphs 5 -13 – and, therefore, it is dismissed.

IV. Disposition

42. The Bench finds that the Application for Leave to Appeal does not demonstrate
that the Trial Chamber may have erred in the exercise of its powers under
Rule 65 (B) and that, therefore, there is no “good cause” within the meaning
of Rule 65( D) for granting leave to appeal. Leave to appeal the Impugned
Decision is, therefore, denied.